State v. Green, ___ N.C. App. ___, 831 S.E.2d 611 (Jul. 16, 2019)

The defendant pled guilty pursuant to Alford to drug and firearms offenses and to habitual felon status. The plea agreement specified that the offenses would be consolidated for judgment and the defendant sentenced in a specific mitigated range. The defense stipulated to a Prior Record Level Worksheet, identifying 19 prior conviction points and classifying the defendant as a Level VI for felony sentencing. On appeal, the defendant argued that three convictions on the record level worksheet were improperly counted. The three convictions at issue were (1) a 1994 drug paraphernalia conviction, listed as a class 1 misdemeanor on the worksheet; (2) a 1993 conviction for maintaining a vehicle/dwelling, listed as a class I felony; and (3) a 1993 conviction for carrying a concealed weapon, listed as a class 1 misdemeanor. A copy of the judgment for the maintaining a vehicle/dwelling was introduced at trial and classified the offense as a misdemeanor (but failed to identify the class). 

  1. In the recent case of State v. Arrington, 371 N.C. 518 (2018), the North Carolina Supreme Court instructed: “[W]hen a defendant stipulates to a prior conviction on a worksheet, the defendant is admitting that certain past conduct constituted a stated criminal offense.” (internal citation omitted) As to the drug paraphernalia conviction, the court found that Arrington applied:

Here, on the Worksheet, Defendant—as ‘the person most familiar with the facts surrounding his offense’—stipulated that his 1994 Possession-of-Drug-Paraphernalia conviction was classified as a class 1 misdemeanor. Thus, Defendant was stipulating that the facts underlying his conviction justify that classification. (citing Arrington)

There was therefore no error to include a record level point for that conviction.

  1. As to the 1993 maintaining a vehicle/dwelling conviction, the court determined Arrington did not apply when a copy of the judgment of conviction was before the court, which showed the offense was classified as a misdemeanor. In the court’s words:

[W]hen evidence (such as a certified copy of the judgment) is presented to the trial court conclusively showing a defendant’s stipulation is to an incorrect classification—as is the case here—Arrington does not apply, and a reviewing court should defer to the record evidence rather than a defendant’s stipulation.

  1. As to the final conviction for carrying a concealed weapon, the defendant pointed out that that offense is typically a class 2 misdemeanor under G.S. 14-269, and therefore should not have been counted as a felony sentencing point. That offense may be elevated to a class H felony when the defendant has been previously convicted of the misdemeanor, but in no case is a violation of that statute a class 1 misdemeanor. Here, nothing showed the defendant had a prior conviction for the crime. The court acknowledged this was a “conundrum” under Arrington. The court identified one circumstance under the statutes where the offense could possibly be classified as a class 1 misdemeanor—when a defendant with a concealed weapon permit carries a concealed handgun while consuming alcohol, under G.S. 14-415.21(a1) (and by reference to G.S. 14-415.11). It was therefore possible for the conviction to be counted as a class 1 misdemeanor. However, the court observed: 

[W]e do not believe the intent of Arrington was to require a reviewing court to undertake sua sponte a voyage of discovery through our criminal statutes to locate a possibly applicable statute and imagine factual scenarios in which it could apply. Rather, we defer to the parties who stipulated to the prior conviction as to what statute applies. Therefore, because Section 14-269 does not provide for a violation of its provisions to be classified as a Class 1 misdemeanor, we conclude Arrington is inapplicable and that the trial court erred in accepting the Defendant’s stipulation.

The maintaining a vehicle/dwelling and carrying concealed weapon convictions added two points to the defendant’s record level worksheet, without which the defendant would have been classified as a prior record level V. The errors were therefore not harmless. Because the defendant’s sentence was imposed pursuant to a plea bargain, remand for resentencing was inappropriate. The court instead vacated the judgment, set aside the entire plea, and remanded for trial or plea on the original charges.